Expropriation in Canada: Discretion Masquerading as Law

Elizabeth BrubakerExecutive Director, Environment Probe

June 2014

Environment Probe225 Brunswick Avenue

Toronto, Ontario M5S 2M6

Tel: 416 964-9223Fax: 416 964-8239

www.environmentprobe.org

Contents

Introduction ............................................................................................. 3

The common law: A man’s home is his castle ........................................ 3

Early statutes .......................................................................................... 5

Canada .................................................................................................... 8

Ontario .................................................................................................... 10

British Columbia ...................................................................................... 18

Alberta .................................................................................................... 20

Saskatchewan ........................................................................................ 21

Manitoba ................................................................................................. 21

Quebec ................................................................................................... 23

New Brunswick ........................................................................................ 25

Prince Edward Island ............................................................................... 26

Nova Scotia .............................................................................................. 27

Newfoundland and Labrador ................................................................... 29

Northwest Territories / Nunavut ............................................................... 30

Yukon ...................................................................................................... 30

The strict interpretation of expropriation laws .......................................... 31

Limiting takings: Lessons from the United States .................................... 33

Notes ....................................................................................................... 35

Introduction

When Niccolò Machiavelli advised his Prince to “abstain from taking the property ofothers,” he warned that “pretexts for confiscation are never wanting, and he who beginsto live by rapine will always find some reason for taking what is not his.”1 The Princes oftoday have strayed far from his advice, with the predicted results. The slimmest ofpretexts – a big box store, a cinema, a parking lot – now excuses many a taking ofprivate property.

Although expropriation – the taking of private property without the consent of the owner– is one of the most extreme uses of government power, Canadian governments havealmost complete discretion over when they resort to it. Governments often justify thisviolation of their citizens’ common-law property rights as being necessary to carry outpublic purposes. But concepts so nebulous as necessity and public purpose provide noprotection for landowners. Expropriations that serve private rather than public interests,and those that are unnecessary, have become commonplace. Expropriation is used asa convenient tool to reduce property acquisition costs for favoured industries.Legislation leaves citizens with little recourse against arbitrary, unfair, and unjustifiedexpropriations.

This study provides an overview of the considerable rights and very limited restraintsthat federal, provincial, and territorial laws confer on expropriating authorities. Itexamines the forums that give landowners only an illusion of meaningful participation inthe expropriation process. It looks at a number of disputed expropriations, and at howthe courts have grappled with them. And it suggests reforms to better balance theneeds of government with the property rights of landowners.2

The common law: A man’s home is his castle

In the 17th century, the famous English jurist Edward Coke wrote that “a man’s house ishis castle,” adding (in Latin), “one’s home is the safest refuge to everyone.”3 Coke’slegal treatises are foundational documents of the common law, and this particularmaxim continues to influence modern courts. Canadian Supreme Court justice ClaireL’Heureux-Dubé wrote in 1991, “Both the legislator and society as a whole recognisethe truth of Edward Coke’s adage ... [P]roperty rights are considered fundamental in ourdemocratic society.”4

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Property rights long shielded homeowners not only from assaults by their fellow citizensbut also from assaults by governments themselves. In a speech to the British House ofCommons in 1763, William Pitt vividly illustrated the strengths of the property rightsprotection: “The poorest man may in his cottage bid defiance to all the forces of theCrown. It may be frail – its roof may shake – the wind may blow through it – the stormsmay enter – the rain may enter – but the King of England cannot enter – all his forcedares not cross the threshold of the ruined tenement!”5

But in fact, the forces of the Crown could expropriate the ruined tenement. Whileexpropriation is not part of the common law, it has existed for as long as kings andparliaments have decreed it. References to expropriation can be found in the OldTestament, in inscriptions from ancient Greece, and in special statutes of the RomanEmpire.6 The practice became commonplace in England with the expansion of railwaysin the mid-19th century, and Canada quickly adopted England’s laws.7

Federal and provincial parliaments canconfer the power to expropriate onwhomever they please. A 19th centurywork on expropriation explained that,under the principle of parliamentarysupremacy, “the only guide to what Parliament may do is what Parliament has done.”8

Or, as one law lord famously wrote, “The Legislature is supreme, and if it has enactedthat a thing is lawful, such a thing cannot be a fault or an actionable wrong.”9 AnOntario justice was even more pointed: “The Legislature within its jurisdiction can doeverything that is not naturally impossible, and is restrained by no rule human ordivine....The prohibition ‘thou shalt not steal’ has no legal force upon a sovereignbody.”10

Nonetheless, no entity can expropriate without being explicitly empowered to do so byfederal or provincial legislation. As one BC justice explained, “The right to seize andenter upon another’s land is a legislative concept. It runs against the general commonlaw principle colloquially stated to be that ‘a man’s home is his castle.’ It is thedeprivation of proprietary rights.”11 Justice L’Heureux-Dubé made the same point, citinga weighty tome on expropriation: “[T]he right to expropriate, being an unusual andexorbitant right, must be found in the express words of a statute for the right is neverimplied.”12

“The prohibition ‘thou shalt not steal’has no legal force upon a sovereignbody.”

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Early statutes

Unfortunately, in Canada, there has been no shortage of statutes conferring the powerto expropriate. Nor have those statutes placed meaningful limits on what those powerscan be used for. As lawyer John Morden(who would later become AssociateChief Justice of Ontario) explained, “InCanada, few hurdles have been put inthe way of expropriating authoritiesexercising their powers as they see fit.”13

The first federal Expropriation Act was passed in 1886. It embodied provisions that hadbeen in the 1881 Government Railways Act and the 1867 Public Works Act.14 TheExpropriation Act was revised over the years, but remained, in the words of Mr.Morden, “badly drawn and ostensibly arbitrary.”15 In 1930, the Exchequer Court ofCanada noted that “the powers granted to the Minister by the [Expropriation] Act seemto be unlimited” and that the Minister’s judgment that private land was necessary for apublic work was not open to review.16 The court made a similar finding in 1946: Themere filing of an expropriation plan “shall be deemed to indicate that in the Minister’sjudgment the land is necessary for the purpose of a public work.... [H]is judgment is notopen to review by the Court.”17

The court addressed the issue again in 1948, in a case concerning the expropriation ofland which was turned over to a Crown company for the construction of rental housing.The court dismissed the objection that the land was not required for a public work,saying that the deposit of the expropriation plan indicated that the Minister consideredthe land necessary for the purpose of a public work; the public could not call this intoquestion.18

Provincial laws likewise left much to the discretion of the government. This wasconfirmed by the Supreme Court of Canada in a 1958 case launched by an Albertarancher who objected to the Minister of Agriculture’s approval of a utility’s proposal toexpropriate a right-of-way for a transmission line. Justice Martland wrote:

The Minister is given sole authority to decide whether or not lands or any interesttherein are necessary for an authorized undertaking. There is no provision for anappeal from his decision. His decision is as a Minister of the Crown and,therefore, a policy decision, taking into account the public interest, and for which

“In Canada, few hurdles have beenput in the way of expropriatingauthorities exercising their powers asthey see fit.”

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he would be answerable only to the Legislature.... His decision was ... to beguided by his own views as to the policy which, in the circumstances, he oughtto pursue.... The question as to whether or not the respondent’s lands were“necessary” is not one to be determined by the Courts in this case. The questionis whether the Minister “deemed” them to be necessary.19

Courts and administrative bodies assessing proposed expropriations had little guidancein defining public works and public purposes. Occasionally, they cast a wide net forassistance. In 1953, an Ontario judge hearing a case about the provincial powercommission’s right to expropriate land looked back to a 1914 Indian decision thatdiscussed the phrase “any public purpose.” The Indian court had cited a still-earlierfinding that the phrase “must include a purpose, that is, an object or aim, in which thegeneral interest of the community, as opposed to the particular interest of individuals, isdirectly and vitally concerned.” The Ontario judge used this construction to illustrate“the broad scope of the possible meaning of the words ‘for the public purposes ofOntario.’”20

The federal Expropriation Act came in for sharp criticism from the president of theExchequer Court in 1959. Justice Thorson wrote:

I have frequently called attention to these provisions of the law and stated thatCanada has the most arbitrary system of expropriation in the whole of thecivilized world. I am not aware of any other country in the civilized world thatexercises its right of eminent domain in the arbitrary manner that Canada does.And, unfortunately, the example set by Canada has infected several of theCanadian provinces in which a similar system of expropriation has beenadopted.21

Justice Thorson pointed out that, under the federal act,

a man’s land can be lawfully taken from him without his consent, and evenwithout his knowledge or any notice to him, merely by the deposit of record inthe proper land titles or land registry office of a duly signed plan and descriptionof the land. This may be done whenever the Minister of the department chargedwith the construction and maintenance of the public work for which the land is tobe taken deems it advisable to do so. On such deposit the expropriation of theland is complete without any further act by anyone.... All that is left to the formerowner of the land ... is a claim to compensation ... And I might add here that thesettlement of claims to compensation is frequently unconscionably delayed.22

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Justice Thorson’s criticism did not go unnoticed. It was quoted in speeches in theHouse of Commons and the Senate. It was also quoted by those working for reforms atthe provincial level, including the Honourable James McRuer, the former Chief Justiceof Ontario who served as Commissioner of Ontario’s Royal Commission Inquiry intoCivil Rights.23 In his 1968 report,Commissioner McRuer, sometimesreferred to as “Canada’s greatest lawreformer,” charged the Ontariogovernment with granting expropriationpowers lavishly: “the power toexpropriate land has been conferred inOntario with reckless and unnecessaryliberality, without sufficient control overthe exercise of the power.” He criticized the expropriation legislation of the day for notclearly setting out the purposes for which lands could be expropriated, or the groundsfor approval: “When no clear purpose is expressed and no grounds for approval arestated the power to expropriate is uncontrolled.” He recommended that legislationgranting expropriation powers clearly state permitted purposes in order both to furnishguidance and to limit the power. And he went further: The power to expropriate shouldbe conferred only when “inescapably necessary in the interest of good government....Powers of expropriation constitute far too great an infringement on civil rights to behanded out as convenient tools.”24

Commissioner McRuer pointed to another “defect” of the legislation then in effect:Property owners rarely had the right to contest an expropriation decision before it wasmade. Although he acknowledged the political nature of the decision to expropriate, heinsisted that “safeguards should be provided to control the way in which the decision isarrived at.” Without a public airing of the issues, “ill-conceived,” “arbitrary,” and“unnecessary” expropriations had occurred. “In such cases, if the expropriation planhad been more thoroughly considered by the authority before it was implemented,much injustice would have been averted.”25 Commissioner McRuer was by no means a lone critic. In the 1960s and 1970s,expropriation was the subject to considerable scrutiny across the country. In 1960,Ontario appointed a Select Committee to review land expropriation and compensation.A year later, British Columbia established a Royal Commission on Expropriation. In1967, the Ontario Law Reform Commission released a report focussing oncompensation for expropriation. The following years saw reports from both the Law

The power to expropriate should beconferred only when “inescapablynecessary in the interest of goodgovernment.... Powers ofexpropriation constitute far too greatan infringement on civil rights to behanded out as convenient tools.”

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Reform Commission of British Columbia and the Alberta Institute of Law Research andReform.

The reports spurred new legislation. Ontario enacted a new expropriation law in 1968.A new federal law took effect in 1970. In 1971, Manitoba brought in a new law. NovaScotia, New Brunswick, Alberta, and Quebec soon followed. Most of the laws providedfor fairer expropriation procedures – such as prior notice and more public participation– and better compensation.

Despite the extensive reforms, few federal or provincial laws addressed the essentialquestion of when expropriation is legitimate and should be permitted. Although many –but by no means all – laws require that expropriation be for a public purpose, fewdefine the term. In the intervening years, the meaning of public purpose has been givena very broad scope. Some expropriations have served unambiguously public purposes,such as defence. But other expropriations have served private ends. In the name ofeconomic development, governments have expropriated private property for the benefitof a foreign-owned gold mine, a large grocery store chain, a car manufacturer, and aprivate housing developer, to name but a few examples. Such expropriations raisetroubling questions about when expropriation is legitimate, and when it constitutes anabuse of government power.

Canada

The federal Expropriation Act authorizes the Crown to expropriate any interest in landthat “in the opinion of the Minister, is required by the Crown for a public work or otherpublic purpose.”26 This power has beendescribed as “virtually all-encompassing,” since it is expressed insubjective terms and since the Actdefines neither public work nor publicpurpose. Nor does the Act provide anyother standard by which a proposedexpropriation can be evaluated.27

Leaving so much to the discretion of theMinister makes it difficult to mount alegal challenge to a proposed expropriation.28 Indeed, one federal judge calledprovisions in the Act “an absolute bar to the judicial review of the ... Minister’s

The federal Expropriation Actauthorizes the Crown to expropriateany interest in land that “in the opinionof the Minister, is required by theCrown for a public work or otherpublic purpose.” This power has beendescribed as “virtually all-encompassing.”

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determination.”29

Although the meaning of public work is unclear, it is clear that a public work need notbe publicly provided, since the Act permits the Crown to expropriate land for privaterailway companies.30 Similarly, the National Energy Board Act allows private companiesto expropriate for pipelines.31 In 1976, the Law Reform Commission of Canada notedthat “Parliament has been very generous” in conferring the right to expropriate. Itreported that at least 1,234 companies had been granted expropriation powers.32

When giving notice of its intention to expropriate, the federal government must indicatethe public work or purpose for which expropriation is required, unless the purpose is“related to the safety or security of Canada or a state allied or associated with Canadaand it would not be in the public interest to indicate that purpose.”33 That exception forsecurity aside, the Act encourages the government to make available additionalinformation with respect to the public work or purpose if requested by those who objectto a proposed expropriation.34

In the event of such an objection, the Act requires the Attorney General to appoint ahearing officer to conduct a public hearing into the proposed expropriation. The Actdoes not specify the issues to be canvassed at the hearing, and does not rule outobjections to the merits of the public work or purpose.35 But the hearing carries littleweight. The expropriating authority need not attend the hearing, make its case forexpropriation, or submit to cross examination. Although the government must considerthe hearing officer’s report on the parties’ objections, it need not heed the parties’concerns. It can confirm its intention to expropriate, as long as it states its reasons fornot giving effect to the objections.36

Critics of the hearing process are legion.Because the Act provides no guidanceon the scope of the hearing, does notrequire the expropriating authority topresent any evidence, and confers nopower on the hearing officer, Eric Todd,the author of a comprehensive book onexpropriation law, described the processas producing “more heat than light.”37 Dismissing the hearing as a place “to let offsteam,” lawyer Gaylord Watkins called it inherently wasteful and “a frustratingexperience for most participants.”38 Municipal lawyer Stephen D’Agostino went further.

Because landowners receive littlefunding to participate in a publichearing, and because the hearingofficer’s report does not bind thegovernment, one municipal lawyerdescribed the public hearing as “a bitof a sham process.”

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Because landowners receive little funding to participate in a public hearing, andbecause the hearing officer’s report does not bind the government, he described thepublic hearing as “a bit of a sham process.”39

Asserting that a proposed project is for a public work or purpose may meet therequirements of the Expropriation Act, but is not sufficient to confer legitimacy on aproject in the public mind. One of the most controversial takings in Canada in recentyears involved defence, which is arguably the most public of purposes. Few wouldlikely challenge the House of Lord’s assertion, in 1920, that “the King, as supremapotestas [supreme power] endowed with the right and duty of protecting the Realm, isfor the purpose of the defence of the realm in times of danger entitled to take any man’sproperty.40 But in less dangerous times, the military cannot count on public support forits takings.

Canada’s 2012 expropriation of Frank Meyers’s prime Ontario farmland for a trainingfacility for the Joint Task Force 2 prompted vigorous public protest, includingdemonstrations, petitions, and a critical web site that attracted more than 58,000 “likes.”Many objected that the expropriation was unnecessary, and that the government hadfailed to explore viable alternatives to it. Furthermore, although the project’s statedpurpose was military, governments at all levels also widely portrayed it as a uniqueeconomic development and job creation opportunity, leading many to question whetherit qualified as a legitimate public work. “Jobs? Since when should expropriation be usedas a job creator?,” one critic asked.41

In fact, job creation and broader economic development goals frequently driveexpropriation. As long as the government deems the economic development to be apublic purpose, it meets the requirements of the Expropriation Act. Such permissivelegislation allows governments to operate virtually unchecked. It is, in the words of onelawyer, “discretion masquerading as law.”

Ontario

A public interest presumption permeates discussions – legal and academic – ofexpropriation in Ontario. That expropriation should occur only if in the public interest isassumed. For example, a frequently cited 1970 Law Society lecture on Ontario’s then-new expropriation legislation referred to “a balancing of the public interest allegedlybeing advanced by the expropriation with that of the private interest of the owner.”42

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Writing for the Ontario Court of Appeal in 1978, Justice Mackinnon referred to “theconflict between private and public interests which exists in every expropriation.”43 In a1997 Supreme Court of Canada decision, Justice Cory wrote that Ontario’sExpropriations Act had been “enacted for the specific purpose of adequatelycompensating those whose lands are taken to serve the public interest.”44

That said, Ontario’s Expropriations Actdoes not actually include any publicinterest requirement. “Public purpose”and “public use” appear nowhere in theAct. “Public works” and “public interest”are each mentioned once, but not as necessary conditions for expropriation. Just twoOntario laws conferring the power to expropriate require a public purpose. The OntarioEnergy Board Act requires expropriation for electricity transmission lines to be in the“public interest.”45 The Ministry of Infrastructure Act empowers the Minister toexpropriate any land considered “necessary for the use or purposes of the Governmentor [a] public sector organization,” or “necessary for the benefit of the public.” But thishardly limits the government’s discretion: Such takings are permitted if the Minister orthe Lieutenant Governor in Council considers them necessary.46

Be it an implicit or explicit requirement, public interest is not to be confused with publicuse. Public bodies may expropriate on behalf of private parties to further privatedevelopments. Expropriation has been used to smooth the way for many a businessventure in Ontario. In 1980, St. Thomas expropriated five homes in order to build aparking lot to facilitate the development of a private residential and commercialcomplex next door. Four affected homeowners went to court, objecting that the city by-law permitting the expropriation was not passed in the public interest, but was insteadintended to benefit a private developer, and was therefore invalid. “With a great deal ofreluctance,” the judge concluded that the development served a public interest.Although the private developer was “the activating force behind the by-law” and would“receive a primary direct benefit from its provisions,” the judge could not say that theby-law had been passed only for these reasons and therefore not in the publicinterest.47

The most notorious example of expropriation for a private purpose involved Toronto,which in 1998 expropriated six properties at Yonge and Dundas Streets in thedowntown area for a private development featuring a multi-screen cinema, shops,restaurants, and offices. Several owners complained bitterly about their land being

Ontario’s Expropriations Act does notinclude any public interestrequirement.

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taken for the benefit of a developer and cinema owner. As one explained, “We object tothe City expropriating our property for the purpose of completing a commercialtransaction which will have no other effect than to transfer wealth from one commerciallandowner to another.”48 The Ontario Municipal Board did consider whether it wasappropriate for the city to expropriate for the private development. It found noprohibition in the Expropriations Act against a city expropriating a property and thenre-selling it to private interests.49 Indeed,it pointed to two precedents, oneinvolving urban renewal in Toronto, andthe other involving the expropriation ofland for the privately operated casino inWindsor – a purpose the court ruled waslegitimate redevelopment, even if not “toeveryone’s taste.”50 In that case, thecourt had set a disturbingly low bar forwhen expropriation is legitimate: “What is proposed is entirely legal. Being legal, thereis no impediment to the City using its power to expropriate for that purpose.”51

Two Ontario expropriations have benefited car manufacturers. In 1999, Windsorexpropriated a block of historic buildings for an office tower that houses theheadquarters of Daimler-Chrysler. In 2005, Oxford County expropriated land for aToyota plant in Woodstock. The company had been looking for 1,000 acres near amajor highway. The county, anticipating $1.1 billion in investment and the creation of2,000 new jobs, was happy to help by acquiring 28 properties and selling them to thecompany. The owner of one property – on which a shopping mall stood – refused tosell, prompting the county to expropriate the land. The mall owner didn’t have anopportunity to challenge the proposed expropriation at a public hearing – at thecounty’s request, the province waived the hearing in order to expedite approval of thecar plant. But the mall owner and its mortgage company did take their fight to court. In a2006 decision, the court endorsed economic development – and the jobs and taxrevenues it creates – as a public purpose: “The expropriation of the Mall Lands and thedevelopment of the Toyota Plant will enable Oxford to provide for stable andmarketable employment and industrial lands to meet short and long-term needs for bothjobs and assessment, which is acknowledged to be a valid and proper public purposesupported and endorsed by the Province of Ontario.”52 The court case dragged on until2014, when the court confirmed, “It is clear that Oxford expropriated the mall lands for avalid public purpose,” i.e., “to promote economic development.”53

“We object to the City expropriatingour property for the purpose ofcompleting a commercial transactionwhich will have no other effect than totransfer wealth from one commerciallandowner to another.”

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If expropriation need not be for a strictly public purpose, what are the requirements?Rather than a public purpose, the Expropriations Act refers to an expropriatingauthority’s “objectives.” Nowhere does it offer guidance as to what objectives mightjustify expropriation, nor does it require an expropriating authority to defend itsobjectives. Instead, the legitimacy and merit of the objectives are strictly off-limits tothose who wish to challenge an expropriation. When an owner of land slated forexpropriation requests a hearing, the inquiry officer appointed to conduct the hearinglooks into whether the taking of the land is “fair, sound and reasonably necessary in theachievement of the objectives of the expropriating authority.”54

The inquiry officer is not empowered to look at the objectives themselves. An inquiryofficer’s report written shortly after Ontario’s Act came into effect explained thatapproving a proposed expropriation“becomes a political rather than a judicialdecision ... [T]he inquiry officer mustaccept the ‘objectives’ of theexpropriating authority.”55 More recently,the Ontario Municipal Board hasconfirmed that the objectives are thestuff of elections rather than of hearingsinto proposed expropriations. In itsdecision regarding the Yonge-Dundascinema development, it wrote, “The objectives of the public authority [are] not to bequestioned by the Inquiry Officers. The objectives are presumed to have beenappropriately determined by elected officials and the remedy for any complaint is toreplace the policy-making elected officials at the ballot box.”56

Depriving landowners of the opportunity to challenge an expropriating authority’sobjectives stands in contrast to the federal practice of permitting such challenges(however ineffectual the process). It also runs contrary to the long-established Britishtradition of providing landowners with a forum that will weigh the personal costs of aproposed expropriation against the alleged public benefits. As an 1846 work onexpropriation for railways explained:

On every ground of justice then, A. has a right to be heard in opposition to ameasure which, if it pass into law, will rob his property of its peculiar charms forhim, and to prove, if he can, to the tribunal which has the power ofrecommending to Parliament the adoption of such measure, that the amount of

“The objectives of the public authority[are] not to be questioned by theInquiry Officers. The objectives arepresumed to have been appropriatelydetermined by elected officials and theremedy for any complaint is to replacethe policy-making elected officials atthe ballot box.”

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damage which will be inflicted on him in the event of a Railway being formed asproposed, exceeds the amount of advantage that will accrue to the public fromits formation.57

Six years into Ontario’s new legislation, a report commissioned by the Attorney Generalnoted that landowners found it difficult to accept that a public hearing provided noopportunity to challenge an expropriating authority’s objectives. They attempted tochallenge the objectives at almost every hearing, and the limitations on their doing sodid “nothing to lessen antagonism to the process.” The report, known as the RobinsonReport, stressed the need for some form of early public involvement in planning majorprojects and hoped that the “possibility of not proceeding at all” be considered.58

In comments directed in part at the Ontario hearing process, the Law ReformCommission of Canada explained in 1976 that depriving landowners of the right tochallenge the necessity of a project – a key element of the expropriating authority’sobjectives – inevitably leads tofrustration: “How can a consideration ofnecessity be excluded when people havenot been able to express their viewspublicly before?”59 In a discussion paperreleased prior to its final report, theCommission proposed that, at the pre-expropriation hearing, the “expropriator should present the reasoning behind theproposed project that has caused the need for land. People opposing the proposedexpropriation should be able to ask questions about this reasoning at the hearing, andpresent their own views. These views would normally encompass both necessity andlocation.”60

Having to accept an expropriating authority’s objectives will often limit a landowner’sopportunities to propose alternatives to a project. In his 1968 report, CommissionerMcRuer had tried to strike a balance between accepting the general policy behind anexpropriation and allowing landowners to propose alternative sites or routes, or othermodifications to an expropriation plan.61 But expropriating authorities can avoid athorough canvassing of alternatives by narrowly defining their objectives – limiting themto putting a particular project in a particular place. For example, when Torontoexpropriated properties for the Yonge-Dundas cinema development, its objectivesinvolved putting an urban entertainment complex on that particular corner during thatparticular business cycle.

“How can a consideration of necessitybe excluded when people have notbeen able to express their viewspublicly before?”

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According to the 1974 Robinson Report, the law regarding consideration of alternativeswas unsettled, with some but not all inquiry officers hearing evidence on alternativelocations.62 The report recommend that public hearings consider alternative sites androutes, or other requests to modify expropriation plans.63 Including a thoroughassessment of alternatives would be consistent with the recommendation by the LawReform Commission of Canada that pre-expropriation hearings should be “somewhat ofan inquiry” in which “[a]lternative sites or routes should be major issues.” Suchhearings would help test a bureaucratic plan to expropriate “by the people who knowthe proposed locale best.”64

At least one court case has concluded that the inquiry officer’s assessment of “fair,sound, and reasonably necessary” should include an examination of alternatives. In1977, the Ontario Court of Appeal rejected Ontario Hydro’s argument that a hearinginto a proposed expropriation for a transmission line should not hear evidenceregarding alternative routes. Ontario Hydro maintained that the taking of the specificlands in question was an objective of the expropriation authority, and therefore outsideof the scope of the inquiry. The court disagreed, finding that the objectives were moregeneral. “To ascribe any meaning whatever to this section and particularly the words‘fair, sound and reasonably necessary,’ it must follow that the inquiry includes the issueof alternative routes. To eliminate this question from the inquiry would almost negatethe inquiry.”65

The standard of “fair, sound, and reasonably necessary in the achievement of theobjectives of the expropriating authority” has been applied somewhat loosely in theprovince. Inquiry officers and courts have often substituted the more general standardof “reasonably defensible.” This follows the advice set out in a 1970 lecture by JohnMorden on Ontario’s then-new expropriation legislation published by the Law Society ofUpper Canada:

In a sense it seems somewhat unrealistic and pointless to analyze eachadjective [fair, sound, and reasonably necessary] in the formula separately,either in the abstract or in relation to an actual case, to determine its “meaning.”Having regard to the political context in which the ultimate expropriation decisionis made I suggest that it may be more realistic to regard the statutory formula asconveying one broad standard – “having regard to the objectives of this authorityis this expropriation reasonably defensible?” I refer back to the observation thatthe issues relating to a decision to expropriate are not justiciable. Therefore anyfinely-spun elaboration of the meaning of the words would seem to me to be

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indulging in a form of theoretic exercise having no relevance to realitiesrespecting the exercise of governmental power.66

Inquiry officers wasted no time in applying this shorthand test of reasonabledefensibility, and the courts offered no resistance. In 1971, the court hearing achallenge to the expropriation of part of a farm for a new secondary school in EssexCounty noted without criticism that the inquiry officer had adopted the new standard.67

In a 1974 Divisional Court case involving Ontario Hydro’s taking of land for atransmission line, Justice Van Camp wrote, “It is only required to show the taking isreasonably defensible, to show the case the owner must meet.”68 Three years later, inan Ontario High Court decision regarding the expropriation of land in St. Thomas forthe construction of an expressway, Justice Cory approvingly cited that decision and theadvice earlier offered in the Law Society lecture: “I agree that it is pointless to analyzeeach adjective. The [reasonably defensible] test ... is in my opinion one that can andshould be considered and applied by an inquiry officer.”69

Inquiry officers continue to use the standard today. For example, Gillian M. Burton usedit in the 2013 hearing into Toronto’s proposed expropriation of homes for the expansionof a city park. The hearing, Ms. Burton wrote, was held to determine whether theproposed taking was “‘fair, sound and reasonably necessary in the achievement of theobjectives of the expropriating authority’ as the Act states, or is ‘reasonably defensible’as the courts have interpreted this test.”70

Regardless of which standard is used, the protection is ultimately of limited worth tolandowners. An inquiry officer’s determination that a proposed expropriation is not fair,sound, or reasonably necessary – or that it is not reasonably defensible – does notbind the party responsible for approving the proposed expropriation. Although the“approving authority” must “consider” the inquiry officer’s report, it need not abide bythe officer’s recommendations. It may approve the proposed expropriation, even if theinquiry officer recommends against doing so, provided it gives written reasons for itsdecision.71

In many cases, those facingexpropriation cannot be confident thatthe approving authority will impartiallyassess the inquiry officer’s report. Underthe Expropriations Act, the approvingauthority is generally a provincial

Municipalities and school boards aretheir own approving authorities. Theyapply to themselves for their ownapprovals of their proposedexpropriations. They are the judges intheir own causes.

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minister. But there are two important exceptions: Municipalities and school boards aretheir own approving authorities. They apply to themselves for their own approvals oftheir proposed expropriations. In other words, they are the judges in their own causes.72

As a consequence of all of the above factors, hearings and the inquiry officers’ reportsthat come out of them have little impact on plans to expropriate. Lawyer StephenD’Agostino has “never seen an expropriating authority decide not to expropriate basedon the hearing.”73 Because aggrieved owners can so rarely successfully challengeexpropriations, an article in the Ontario Expropriation Association newsletter describedthe hearing process as “more window dressing than real.”74

An approving authority’s blessing of an expropriation leaves landowners with littlerecourse. As the Supreme Court of Canada’s Justice Laskin noted in the above-mentioned decision concerning the expropriation of part of a farm for a new secondaryschool, the Ontario Legislature has

left little room for judicial supervision of an approving authority’s discharge of itsduty to approve or disapprove an expropriation ... The Court is given no role toreview the merits of an expropriation proposal ... [The approving authority] isinvested with the widest discretionary power to determine, subject only toconsidering the inquiry officer’s report, whether an expropriation should proceed.The sanction for a wrong-headed decision (absent bad faith), having regard toits duty to give reasons, is public obloquy not judicial reproof.75

This decision was cited by the Ontario Divisional Court the following year. Theenvironment minister had approved Ontario Hydro’s application to expropriate land fora transmission line, despite the inquiry officer’s findings that the utility had notconsidered all reasonable alternative routes, and that the application was neither fair,sound, nor reasonably necessary. The court found that the minister had “acted withinhis statutory authority” and that “the Court has almost no part to play in reviewing hisactions.... So long as the Minister considers the report of the inquiry officer andapproves the proposed expropriation in the manner provided in s. 8(1) of theExpropriations Act, the Court has no concern with the wisdom or lack of wisdom of whatthe Minister has done.”76

The Supreme Court’s decision on an approving authority’s wide discretion was alsocited in a 1978 case concerning Windsor’s expropriation of lands for a housing projectto be developed by a private corporation. The city believed “it would be too costly and

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time consuming for private entrepreneurs to assemble” the relatively small lots in thearea it wanted to see developed. In fact, a substantial number of the lots belonged toone developer, which objected to losing its lands. After a public hearing, the inquiryofficer concluded that it would not be fair to take “lands from one group of privatecitizens to deliver the serviced inventory of lands to another [less well established]private group.” The officer alsoconcluded that the proposedexpropriation was not necessary to meetthe city’s housing objectives. Following aby-now familiar pattern, Windsorconsidered the officer’s report, ignoredhis conclusions, and confirmed itsintention to expropriate. The court hearing the dispute made an astonishing finding:“Much was made in argument that the lands in question were not expropriated forpublic purposes. The short answer is that once the power to expropriate is conferred itwould seem inconsequential whether or not it was for a public purpose.”77

Ontario’s Expropriations Act, introduced in 1968, served as a model for expropriationlegislation elsewhere in Canada.78 The following brief survey of other provinces andterritories will highlight some of the key similarities and differences, with a focus onwhether a public purpose is required, how it is defined, and what options landownershave to challenge proposed expropriations.

British Columbia

BC’s Expropriation Act, like its Ontario counterpart, includes no requirement that aproject be for a public purpose or in the public interest – nowhere does it state that thepower of expropriation is to be exercised only for public uses or public works. As is truein Ontario, a public inquiry may be held “for the purpose of inquiring into whether theproposed expropriation of the land is necessary to achieve the objectives of theexpropriating authority.” (Unlike Ontario, BC does not require the proposedexpropriation to be fair or sound.) Although the inquiry may look at whether thoseobjectives could be better achieved by using an alternative site, or by varying theamount of land to be taken, it may not consider “the necessity for the project or work forwhich the expropriation is sought.”79

“Once the power to expropriate isconferred it would seeminconsequential whether or not it wasfor a public purpose.”

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Even this limited right to challenge aproposed expropriation is not automatic.An owner whose land will beexpropriated for a “linear development”(a highway, railway, power line, pipeline,or water or sewage pipe) may notrequest a public inquiry.80

The province’s decision to exempt linear developments from public hearings reflectsthe ambivalence of the Law Reform Commission of British Columbia’s 1971 report onexpropriation. The Commission acknowledged the value of providing owners with anopportunity to be heard. It argued that a hearing creates “a much healthier relationship”between a landowner and an expropriating authority. It reported that in Ontario “thevery existence of the inquiry procedure is making expropriating authorities more carefulin the preparation of their plans and has resulted in more consideration being given tothe position of owners.”81

The Commission drew extensively from Ontario’s Inquiry into Civil Rights report. In thatreport, Commissioner McRuer treated a public inquiry as a necessary safeguard of alandowner’s civil rights: “The right to a hearing is fundamental justice. In addition toreasons based on fundamental justice, a right to be heard will tend to produceexpropriation decisions which will reflect more consideration for the rights of theowner.”82 The Commissioner also argued that hearings “produce better plans.” Theyallow for “a better understanding of all the relevant facts” and guard against oversight.They may even “reveal circumstances that would reduce costs.”83

Despite its nods to the McRuer report, the BC Commission mused that inquiries –especially for projects involving land assembly or for rights-of-way for roads,transmission lines, or pipelines – may “come too late in the day to have any realmeaning.” If project proponents have been able to acquire some land throughnegotiation, “it may be impractical to make a change” once expropriation proceedingsfor the remainder of the land have begun. The Commission shied away fromrecommending that the inquiry be held before any lands are acquired for a particularproject, calling this an ideal but extreme position.84

An owner whose land will beexpropriated for a “lineardevelopment” (a highway, railway,power line, pipeline, or water orsewage pipe) may not request apublic inquiry.

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Alberta

Alberta’s Expropriation Act does not spell out a public purpose requirement. The twosections of the Act that refer to the “public interest” serve to expedite, rather than curb,expropriation. One section specifies that an expropriation can proceed without a publicinquiry if the expropriating authority urgently requires the land and if a delay “would beprejudicial to the public interest.” Another empowers the Lieutenant Governor inCouncil to direct an approving authority to approve a proposed expropriation if itsrefusal to do so “is contrary to the public interest.”85

In most cases, an Alberta owner facing expropriation may request a public hearing toinquire into “whether the intended expropriation is fair, sound and reasonablynecessary in the achievement of the objectives of the expropriating authority.”86 In hisreport on the hearing, the inquiry officer shall express his “opinion on the merits of theexpropriation.” But that said, “No person may in any proceedings under this Act disputethe right of an expropriating authority to have recourse to expropriation.”87

As in other provinces, public hearings into expropriations in Alberta are of limited value.After considering the inquiry officer’s report, the approving authority may approve,disapprove, or modify the proposed expropriation. The only requirement is that it givewritten reasons for its decision.

A sports and entertainment centreproposed for Fort McMurray wasexamined in a four-day inquiry in 2013,after which the provincially appointedinquiry officer concluded that necessarystudies had not yet been conducted, andthat “there is no reasonable assurance that the project will ever proceed.” But theofficer’s report did not deter the municipality. The director of the downtownredevelopment project explained that the report was not legally binding and that theadministration did not agree with its conclusions. He defended the city’s right to ignorethe report, suggesting that doing so is commonplace: “It isn’t unusual for an inquiryofficer to raise these issues, brought forward by the people opposing the change. Ourlegal counsel is one of the most experienced in the province, and her statement wasthat in every case, notwithstanding an officer who had raised some concerns, councilhad moved forward to complete the expropriation.”88 The municipality thereforeproceeded with its plans.

“In every case, notwithstanding anofficer who had raised someconcerns, council had moved forwardto complete the expropriation.”

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Saskatchewan

Saskatchewan’s Ministry of Justice defines expropriation as “the taking of land forpublic purposes without the consent of the owner of the land.”89 But the province’sExpropriation Procedure Act leaves much wiggle room with a circular interpretation of a“public improvement” as “anything for the purpose of which an authority mayexpropriate land.”90

The province’s expropriation of farm land for a one-million-square-foot Loblawswarehouse and distribution centre illustrated how broad the definition of public purposecan be. The Loblaws facilities are part of a larger project called the GlobalTransportation Hub – an “inland port” just west of Regina that, its promoters said, wouldconnect Saskatchewan to the rest of the world. According to John Law, the CEO of theGlobal Transportation Hub Authority, Loblaws would not have considered building inthat location if it had had to negotiate with landowners. “We had to make the landavailable or lose $200 million in investment and 1,500 jobs,” Law said.91

Saskatchewan’s Expropriation Procedure Act gives landowners the opportunity tochallenge some expropriations. A landowner may apply to the Public and Private RightsBoard for a review “of the route, situation or design of the public improvement.” Theinvestigation is informal and occurs at the discretion of the board. The board sees itsprimary role as dispute resolution – managing negotiations and reaching mutuallyacceptable solutions.92 The Act gives it no power to impose solutions.

Most of the issues dealt with by the Public and Private Rights Board concerncommunications infrastructure, power facilities, and highways. The MunicipalExpropriation Act creates no similar body to hear challenges to municipalexpropriations. Nor does the Expropriation Act, which applies to takings under TheConservation and Development Act and The Water Power Act, provide owners anyforum in which to challenge expropriations.

Manitoba

Manitoba’s Expropriation Act provides little guidance on the purposes permittingexpropriation. The provincial Land Acquisition Act authorizes the government toempower a minister to acquire lands for the purposes of any work or program to be

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constructed or carried on by the government.93 The Public Works Act goes further,authorizing a designated minister to expropriate any property “that he deems necessaryfor any public work or purpose connected therewith, or for any public purpose of thegovernment.” Ensuring that the government has very broad discretion, the Act’sdefinition of public work includes any property or work “that has been proclaimed by theLieutenant Governor in Council to be a public work.”94

The Expropriation Act includes the bynow familiar language about theobjectives of the expropriating authority.At a public hearing, an inquiry officer willexamine “whether the intendedexpropriation is fair and reasonablynecessary for the achievement of theobjectives of the expropriating authority.” Here too, the Act limits how deeply the officercan probe: “an inquiry officer shall not consider any matter or question relating to ... theadvisability, expediency, legality or necessity of the objectives of the expropriatingauthority for the achievement of which the land to be expropriated is being acquired.”95

However, the government’s discretion to take land is not unlimited. A 1978 casechallenged the right of the Minister of Public Works to expropriate fossil-rich farmlandin order to transfer it to the federal government to compensate for the flooding of fossil-rich federal parkland some 20 miles away, on a different river. The landowners arguedthat their land was not required for the purpose of the government work – i.e., the damthat would flood the federal land. The government argued that “the decision toexpropriate was by way of exercise of ministerial discretion and so beyond reach of theCourt.” It argued that the Minister could “take land when and where he will.”

The Court of Queen’s Bench replied that this “might be viewed as tantamount to the re-introduction of feudalism, softened only by the requirement to pay for what is taken.” Itacknowledged that “the supremacy of the ministerial decision to expropriate has beenrepeatedly affirmed.” Nonetheless, it insisted that the power to expropriate “is notabsolute.” There “should exist at least a reasonably direct relationship between theobjective sought [and] the means employed to obtain it.” In this case, “the decision totake the applicants’ lands can only be regarded as arbitrary.” If the decision was takenarbitrarily, “then in law that decision cannot be looked upon as one taken in good faith.”And so the court set aside the expropriation. The headnote to the case drew this lessonfrom it: The Minister’s “wide power does not mean ... that land can [be] taken by the

“An inquiry officer shall not consider ...the advisability, expediency, legality ornecessity of the objectives of theexpropriating authority for theachievement of which the land to beexpropriated is being acquired.”

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Minister when and where he pleases.”96

The same Manitoba court seemed to distance itself from this decision a decade later,citing the findings on ministerial discretion and ignoring those on its limits. That caseinvolved an urban revitalization plan in Winnipeg. As part of the plan, the CanadianNational Railway Company agreed to transfer some of its land in the targeted area to agovernment-owned development corporation, in exchange for some other land that theit (CNR) could use for its own purposes, including development or sale. Thereplacement land was already privately owned, and would have to be expropriated. Theprovince dispensed with a public inquiry, and the city went ahead with theexpropriation, leading to a court challenge.

The landowners argued that their land was not required for any public work – that CNRwould use it for its own private purposes. The judge disagreed, saying that civicpurposes included the sponsorship of land development. The land exchange was acomponent of the city’s development plans. The City of Winnipeg Act empowered thecity to take any lands it deemed necessary for its purposes, and to dispose of any landsacquired to any person for the purpose of development. The expropriation, the judgefound, “was essentially a policy decision taken in what the Council of the City ofWinnipeg perceived to be the broad public interest, namely to facilitate thedevelopment of and ... ‘to revitalize a neglected and underused area of the City.’ Nodoubt the City had to act within the bounds of its authority, but as long as it did so, anddid not otherwise abuse its discretion, the expropriation could not be questioned.”97

Quebec

Quebec’s Charter of Human Rights and Freedoms enshrines property as afundamental right: “Every person has a right to the peaceful enjoyment and freedisposition of his property, except to the extent provided by law.”98 The province’s CivilCode goes further, specifying that “No one can be compelled to give up his property,except for public utility and in consideration of a just indemnity previously paid.”99 Thus,although the provincial Expropriation Act does not itself require expropriation to be forpublic utility, both the courts and the government assume a public interest requirement.Supreme Court Justice L’Heureux-Dubé wrote, “In Quebec, no one can be deprived ofproperty unless it is in the public interest and for just compensation.”100 Likewise, on itsweb site, the Tribunal Administratif du Quebec explains that a department, agency, ormunicipality has the right to expropriate “for reasons of public interest.”101

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In practice, however, public interest is defined so broadly as to render the restrictionmeaningless. This became apparent in a case heard by the Supreme Court of Canadain 1991. The town of Val-Bélair had expropriated land for a “land reserve” – defined byone judge as “a bank of land the use of which is not yet known.” The court was dividedover whether an undetermined use could qualify as a public purpose. In their dissentingopinion, Justice L’Heureux-Dubé and two colleagues argued that “If a land reserve isdefined by its lack of purpose, it is presumptively impossible to conclude that itscreation is for the betterment of the collectivity. It is not self-evident that expropriationfor the sole purpose of creating a land reserve is in the public interest, which is whatour law requires.” Allowing a municipality to expropriate “for no other reason than thecreation of a land reserve ... would facilitate the abuse of the expropriation power,” thedissenting justices continued. If a municipality need not demonstrate why a proposedexpropriation is in the public interest, “there is no check on a municipality’s power toexpropriate, and no basis on which to challenge its decisions.”102

The Supreme Court’s majority did not share these concerns, and approved theexpropriation. In its decision, it noted that expropriation is sometimes allowed forprivate purposes that are consistent with public purposes. Specifically, a municipalitycan expropriate land for purposes contemplated in or consistent with a “specialplanning program” and then sell or lease the expropriated property. In effect, the courtnoted, municipalities can act as land developers. They can acquire land “for thepurpose of resale or leasing, and what is more, those operations can be carried out forthe benefit of third parties.”103

Quebec’s Expropriation Act provides those facing expropriation more meaningfulopportunities to protest – in terms of both the forum for objections and the nature of theobjections – than do most other provincial Acts. It empowers those facing expropriationto “contest the right of the expropriating party to expropriate.” Furthermore, theobjection is made to the Superior Court rather than to an inquiry officer or otheradministrative body.104

But Quebecers are not always able to challenge the right of the expropriating party toexpropriate. In response to the July 2013 railway disaster in Lac-Mégantic, the provincepassed a law facilitating expropriation, not only of properties damaged by the explosionbut also of properties slated for redevelopment elsewhere in the town. The Acteliminated an owner’s right to contest the town’s right to expropriate before theSuperior Court.105

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New Brunswick

New Brunswick’s Expropriation Act isunique in that it explicitly allowsexpropriation for private purposes. TheAct permits the government toexpropriate for any work or enterprise itconsiders to be “in the public interest,” or for carrying out any public, commercial,industrial or utility purpose. It then goes further. It permits “any person, other than anexpropriating authority, who requires an expropriation for commercial, industrial orutility purposes” to “file with the [Expropriations Advisory] Officer an application for anexpropriation by the Lieutenant-Governor in Council.”106

Expropriation does indeed occur for private purposes. One case that reached thecourts concerned Fredericton’s expropriation of an easement for water and sewer pipesin order to accommodate the needs of a private housing developer. The property ownerobjected to the city expropriating land to financially assist a developer, and called theexpropriation evidence of an “unhealthy relationship” between the city and thedeveloper. The judge disagreed, saying that “municipalities often exercise their powersof expropriation so that private developments can proceed.” She warned that if the citydid not get involved in such matters, “development would come to a halt in any casewhere a landowner refused to grant an easement for infrastructure.”107

The line between a public and private purpose may be blurry. In 2006, 14 ownerswhose property was expropriated by Saint John for the construction of a road chargedthat the expropriation was for the benefit of Irving Oil and should have been treated asa private expropriation, which would have been subject to more rigorous challenges.The road, paid for by Irving, would allow the company to transport heavy equipment toa proposed liquified natural gas terminal. Although the city admitted that the new roadwas not a priority for it, it insisted that the road would offer the public a securealternative to an older road that was threatened by erosion. The court sided with thecity.108

A landowner facing expropriation, be it for a public or a private purpose, may file anobjection to a proposed expropriation. In the event of a private application forexpropriation, any person may file an objection. The Expropriations Advisory Officer willnormally arrange for a public hearing, although the government may proceed withexpropriation without a hearing if it is in the public interest to do so. The officer will

New Brunswick’s Expropriation Act isunique in that it explicitly allowsexpropriation for private purposes.

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consider whether the proposed expropriation is “reasonably necessary to accomplishthe objectives of the expropriating authority or applicant” and is “fair, balancing theobjectives of the expropriating authority or applicant against the interests of the owner.”In the case of a private application, the officer will also consider whether the proposedexpropriation “is consistent with the public interest.”109

The officer’s report is advisory only. The expropriating authority may, after consideringit, confirm its intention to expropriate. In a 1986 decision, one judge wrote, “anexpropriating authority is in no waybound by the report of the expropriationsadvisory officer and may, in effect, electto ignore its findings, recommendationsor other content.”110 Ultimately, thegovernment has complete discretion overwhether to allow an expropriation. In a1989 case, the New Brunswick Court ofAppeal ruled that the decision is “madeby the Lieutenant-Governor in Council for policy considerations. In my view, such adecision is final and not reviewable in legal proceedings.”111

Prince Edward Island

PEI’s Expropriation Act allows for expropriation of “any land for any purpose relative tothe use, construction, maintenance, or repair of a public work.” In the term “public work”it includes “highways, roads and bridges, public buildings, and all other works andproperty for the acquisition, construction, repair, extending, enlarging, or improving ofwhich any public money is or has been appropriated by the Legislature, and every workrequired for those purposes, but not any work for which money is appropriated as asubsidy only.”112

The courts have taken seriously the public work requirement. In a case regarding theextension of a provincial park, the expropriating authority neglected to state thepurpose in the expropriation plan or in the notice to the landowner, as required. Thelandowner objected that there was no indication that the purpose of the expropriationwas a public work. The judge agreed that the documents failed to comply with therequirements in the statute and declared the expropriation proceedings to be invalid.113

“An expropriating authority is in noway bound by the report of theexpropriations advisory officer andmay, in effect, elect to ignore itsfindings, recommendations or othercontent.”

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Unfortunately not all of PEI’s expropriating authorities are bound by a strict public workstandard. Municipalities require only a broader “municipal purpose” to expropriate.Under the Municipalities Act, a municipal council can expropriate “for the purpose ofproviding any municipal services it is authorized to provide under this Act.” Authorizedmunicipal services include not only traditional responsibilities – such as the provision ofroads, public transit, water and sewage services, and parks – but also the more general“industrial or commercial development and promotion.”114 Expropriating for commercialdevelopment may be indistinguishable from expropriating for private purposes.

PEI’s Expropriation Act makes no provisions for a public hearing into a contestedexpropriation. An unhappy landowner can request only that compensation be arbitratedby a judge. Similarly, the Municipalities Act provides for arbitrated compensation, butnot for an inquiry into the expropriation itself.

Nova Scotia

Nova Scotia allows expropriation for a variety of purposes, including “any public work”(a highway, road, bridge, public building, or other property belonging to or financed bythe province, except those for which money is appropriated as a subsidy only) or “anypurpose that is a public purpose.” It also permits the province to expropriate land toimplement a publicly financed agreement between two levels of government.115

These permitted purposes were explored in a 1978 court case involving thedevelopment of the Halifax waterfront. The federal and provincial governments hadentered into an agreement to bring new commercial and retail space, housing, parking,ferry terminals, and recreational and cultural facilities to the harbour area. Thegovernments would acquire lands, plan for their use, and install infrastructure, but theywould not carry out the development. Instead, the plan was “to provide a packageattractive enough for the private sector to invest in.”116 Ultimately, the governmentshoped the plan would generate private investment of $150 million.

Those whose property was expropriated for the project argued that the federal-provincial agreement “contemplated investment by the private sector and, therefore, theexpropriation was not for a public purpose.”117 The judge dismissed this claim, decidingthat the expropriation was related strictly to the public part of the project – theacquisition of lands and the construction of infrastructure – and that the agreementitself, if not the development, was financed from public funds.

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The landowners also protested that the expropriators had not finalized the planning andhad not determined any specific use for their properties. But the judge was not troubledby the question of how an unknown use could be known to be a public use: “Theultimate use of the lands was not really anecessary consideration at the time ofexpropriation.” He admitted that “TheCourt does not know exactly why theplaintiffs’ lands were necessary,” butexplained that the Minister ofDevelopment had stated that the landswere required to implement theAgreement. There being no evidence tothe contrary, “it is a reasonable inference from the Minister’s statement that the landswere, in fact, required.” To erase any doubt, he later added, “it is surely not necessaryto have a specific use in mind for each particular property that is subject toexpropriation.”118

Ultimately, none of this mattered. The Expropriation Act permits the province toexpropriate land to implement an agreement entered into between the province andCanada if the agreement is financed from public funds. The judge was satisfied that the“true purpose” of the expropriation was to implement such an agreement.119

Furthermore, the judge did not think that the government’s decision to approve anexpropriation was reviewable by the court. When drafting the Act, the legislature leftthe decision to the government of the day. It “intended to confer wide powers ofexpropriation” and did not encumber it in exercising its discretion.120

The highest profile expropriation case in Nova Scotia in recent years involved thetaking of part of a Christmas tree farm for an open pit gold mine to be developed by anAustralian mining company. The taking occurred under the Mineral Resources Act,which allows the Minister of Natural Resources to grant a “vesting order” transferringownership of land from one party to another.

The landowner objected that the Minister considered inappropriate factors, such as theeffects of the proposed mine on the economy. But the courts disagreed. The purpose ofthe Mineral Resources Act, they noted, includes encouraging, promoting and facilitatingmineral exploration, development and production. The proposed mine would be a boonto the area, employing up to 300 people during construction and 150 during operations.The Minister had a responsibility to promote mining “and the public interest at stake.”

“The ultimate use of the lands was notreally a necessary consideration atthe time of expropriation.... it is surelynot necessary to have a specific usein mind for each particular propertythat is subject to expropriation.”

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The land was “of great importance” to the owner. “It must be remembered, however,that the Minister’s decision to divest him of his land was also important to DDV [themining company, and] ... to other people in Nova Scotia.”121

The landowner also objected that the process was not fair, and should have involved ahearing. But the Mineral Resources Act does not set out any process for thegovernment to follow when depriving someone of his land. As the Court of Appealexplained, “The MRA does not prescribe any procedure for the Minister to follow ingranting vesting orders, leaving this to the Minister to determine. The Minister is notrequired to decide issues of fact or applylaw in making his decision. His decisionis a policy decision, that must take intoaccount the public interest and for whichhe is only answerable to theLegislature.”122 In 2014, the SupremeCourt of Canada refused to hear anappeal of this decision.

Like the Mineral Resources Act, Nova Scotia’s Expropriation Act contains no provisionsfor public hearings into expropriations. Instead, it focusses on compensation. Indeed,the stated purpose of the Act is “that every person whose land is expropriated shall becompensated for such expropriation.”123 Landowners who are unable to negotiatesatisfactory compensation may request a hearing in front of the Nova Scotia Utility andReview Board.

Newfoundland and Labrador

Newfoundland and Labrador’s Expropriation Act sets out a long list of purposes forwhich land may be expropriated. It may be expropriated for public buildings, otherpublic works, roads, airstrips, ferry landings, other transportation facilities, bridges,water supply, and sewage works. It may be expropriated for a housing development, anational or provincial park, a hospital, a school, accommodation for the travellingpublic, and sports and recreation facilities. It may also be expropriated for theestablishment or development of an industrial enterprise, a fishing enterprise, and aland development area. For good measure, the list of permitted purposes ends with acatch-all: “the use of the Crown or of the public for another purpose.”124

“The Minister is not required to decideissues of fact or apply law in makinghis decision. His decision is a policydecision, that must take into accountthe public interest and for which he isonly answerable to the Legislature.”

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The fact that a private party will benefit from a taking does not rule out the procedure.In 2004, St. John’s threatened to expropriate a dilapidated house for a proposed hotel,arguing that the development would create jobs and tax revenues and revitalize thedowntown core. The owner accused the city of an improper attempt to take property fora private purpose. The expropriation, he charged, would directly support a privatedeveloper, and only indirectly benefit the public. The judge hearing the owner’s requestfor an interim injunction wasn’t persuaded that the considerable public benefits weresecondary or incidental. A full hearing would be required to weigh the public andprivate benefits.125

The Act includes no provisions for challenging an expropriation at a public hearing.When compensation is disputed, it will be fixed by the Board of Commissioners ofPublic Utilities after a hearing into the matter.

Northwest Territories / Nunavut

The Expropriation Act of the Northwest Territories and Nunavut authorizesexpropriation when, in the opinion of the Legislature, the Government requires the land“for a public work or other public purpose.” It also authorizes expropriation when, in theopinion of an expropriating authority, the authority requires the land for its “lawfulpurposes.”126

Anyone who objects to an intended expropriation may request a public hearing. Afterthe hearing, a hearing officer will prepare a report on the nature and grounds of theobjections. The report is not binding: After considering it, the expropriating authoritymay confirm its intention to expropriate. If requested to do so, the expropriatingauthority must state its reasons for not giving effect to the objections.127

Yukon

Yukon permits expropriation of “any land that the Minister deems necessary for thepublic purposes of the Yukon” or for “the public purposes of any municipality.”128

As is true in PEI, Nova Scotia, and Newfoundland and Labrador, Yukon law includes noprovisions for public hearings at which owners can contest proposed expropriations,

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review proposed routes, or propose alternatives. Only compensation is open tochallenge. If compensation is disputed, either the landowner or the expropriatingauthority may request the services of a board of negotiation. If negotiations fail,compensation may determined by arbitration by a judge of the Supreme Court.129

The strict interpretation of expropriation laws

As the above overview of federal, provincial, and territorial legislation illustrates,expropriating authorities have almost unlimited authority to take land for whateverpurposes they wish, and citizens have very little recourse. This state of affairs is notinevitable – it exists only because governments have passed laws establishing it. Asthe Supreme Court of Canada explained in 2008, “By virtue of the rule of law principle,all exercises of public authority must find their source in law. All decision-makingpowers have legal limits, derived from the enabling statute itself, the common or civillaw or the Constitution.”130

The Supreme Court, alert to the extent to which expropriation violates peoples’ propertyrights, has repeatedly insisted on interpreting expropriation legislation strictly. As thecourt noted in 1997, “The expropriation of property is one of the ultimate exercises ofgovernmental authority. To take all or part of a person’s property constitutes a severeloss and a very significant interference with a citizen’s private property rights. It followsthat the power of an expropriating authority should be strictly construed in favour ofthose whose rights have been affected. This principle has been stressed by eminentwriters and emphasized in decisions of this Court.”131

Other Supreme Court justices have likewise acknowledged that expropriation is anextreme use of government power. Justice L’Heureux-Dubé wrote in 1991:

Expropriation constitutes a drastic interference with an individual’s right toproperty. It allows a government to deprive a person of his or her land. In somecases this may mean that an individual loses a home, a ‘safest refuge’. In othercases, ... expropriation maylead to the loss of one’slivelihood. Because property isa fundamental legal right, andbecause expropriation is suchan exorbitant power, Canadian

“Expropriation constitutes a drasticinterference with an individual’s rightto property.”

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law has consistently favoured a restrictive interpretation of statutes enablingexpropriation.132

The justice shored up her case with a reference to an influential legal treatise: “‘Anglo-Canadian jurisprudence has traditionally recognized, as a fundamental freedom, theright of the individual to the enjoyment of property and the right not to be deprivedthereof, or any interest therein, save by due process of law.’ To this right corresponds aprinciple of interpretation: encroachments on the enjoyment of property should beinterpreted rigorously and strictly.”133

In a 1983 Supreme Court of Canada decision voiding an expropriation because ofCalgary’s failure to give prescribed notice, Justice McIntyre wrote, “There are manyother cases of similar import which have clearly established the principle that, where apower is given by a statute to a municipal government to expropriate individualinterests in land, the statutory conditions for the exercise of that power must be strictlycomplied with.”134 Pointing out that this rule is of long standing, the Justice cited an1888 Ontario decision to the effect that “It is essential to the validity of a by-lawestablishing ... a road, by which the property of private persons may be compulsorilytaken ..., that the provisions of the statute under which it is passed shall be strictlyobserved.”135 The Justice acknowledged that Calgary’s error had been a minor one.But, he mused:

how far should the courts go in relieving municipalities from following mandatoryprovisions regarding service where the interest of private citizens is concerned?If an error of three days is forgiveable, then what about one of four, or five, orten days? Surely, the line must be drawn somewhere to give the citizen anyprotection. In my view, the line should be drawn where the Legislature chose toput it and not where individual judicial discretion may fix it on a case by casebasis.136

The courts’ long history of strictly construing statutes means that simple legislativechanges – in particular, those more clearly defining public purpose – could be veryeffective in limiting governments’discretion over expropriation.Expropriation powers have been grantedby legislation, and can be taken away bylegislation. Legislation could spell outthe specific purposes for which

Expropriation powers have beengranted by legislation, and can betaken away by legislation.

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expropriation could be used. It could rule out economic development, job creation, andthe generation of tax revenues as justifications for expropriation. It could allow judgesrather than politicians to determine if uses are truly public. And it could severely limitthe transfer of expropriated property to private parties. Nowhere has the potential forreform been better illustrated than in the United States.

Limiting takings: Lessons from the United States

The last decade has seen a dramatic narrowing of expropriation powers in many states.The reforms can be traced to 2005, when the US Supreme Court issued a decision inKelo v. City of New London. At the behest of the pharmaceutical giant Pfizer, theConnecticut city of New London empowered a private development corporation toexpropriate homes, and to use the land for office space, parking, and retail. Thelandowners objected that this was not a public use, as required in the US Constitution.But the court decided that economic development would indeed serve a public purpose,since it would create jobs and increase tax revenues.137

The Kelo decision was one of the most unpopular decisions the Supreme Court hasever issued. It ignited a firestorm of opposition to expropriation for private purposes.Understanding that they could no longer count on federal constitutional protections,citizens sought protection at the state level. They lobbied their legislators, introducedballot initiatives, and went to court. The results have been extraordinary: 44 statelegislatures and many state high courts have restricted expropriation. The mostsubstantive reforms are found in constitutional amendments required by citizen-initiatedreferenda.138

States have taken a number of different approaches to restricting expropriation forprivate uses. Some specifically prohibit the use of expropriation for economicdevelopment – although many make anexception for the elimination of blight.Alabama forbids municipalities andcounties to expropriate for “private retail,office, commercial, industrial, orresidential development; or primarily forenhancement of tax revenue.”139

Michigan specifies that “‘public use’ doesnot include the taking of private property

A taking “is not for public use if theprimary use is for private gain, privatebenefit, private enterprise, increasingjobs, increasing tax revenue, oreconomic development, except for theelimination of a public nuisanceexisting on the property.”

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for transfer to a private entity for the purpose of economic development orenhancement of tax revenues.”140 Virginia likewise spells out that a taking “is not forpublic use if the primary use is for private gain, private benefit, private enterprise,increasing jobs, increasing tax revenue, or economic development, except for theelimination of a public nuisance existing on the property. The condemnor bears theburden of proving that the use is public, without a presumption that it is.”141 NorthDakota, Arizona, and New Hampshire also exclude increases in the tax base,employment, and general economic health from the definition of public use.142

At least one state now requires judges –rather than legislators – to decidewhether a use is public or private,making the definition less arbitrary andpolitical. In Arizona, “Whenever anattempt is made to take private propertyfor a use alleged to be public, thequestion whether the contemplated usebe really public shall be a judicialquestion, and determined as such without regard to any legislative assertion that theuse is public.”143

Other states have made it more difficult to transfer expropriated property to privateparties – with exceptions typically made for privately owned utilities and commoncarriers, such as railroads. Alabama forbids expropriation for “transfer to a person,nongovernmental entity, public-private partnership, corporation, or other businessentity.”144 South Dakota uses similar language.145 Florida requires that every transfer ofexpropriated property to a private entity be approved by a three-fifths vote in eachhouse of the state legislature.146 The state further requires localities to wait 10 yearsbefore transferring expropriated land from one private owner to another.147 Mississippilikewise prohibits state and local governments from transferring expropriated propertyto a private entity for a period of 10 years after its acquisition.148

Canada can learn much from such changes. Adopting similar rules strictly limitingpermitted public purposes would go a long way to curbing expropriation abuse in thiscountry.

“Whenever an attempt is made to takeprivate property for a use alleged tobe public, the question whether thecontemplated use be really publicshall be a judicial question, anddetermined as such without regard toany legislative assertion that the useis public.”

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1. Niccolo Machiavelli, The Prince, 1532.

2. This study owes much to the research assistance of Chris Wong, Fraser Malcolm,Ka-Wai Leung, Ryan Conrad, Caroline Wrobel, Louis Winston, Richard Owens, LenaPhillips, Sheryl Cornish, Christina Parkes, and Adrienne Glen.

3. Edward Coke, The Institutes of the Laws of England, 1644. This translation cited inLeiriao v. Val-Bélair (Town), [1991] 3 SCR 349, para. 7.

4. Leiriao v. Val-Bélair (Town), paras. 7, 8. Note that this was a dissenting opinionsigned by three justices.

5. William Pitt, Speech on the Excise Bill, House of Commons, March 1763. Thisversion cited in Wikiquote entry on William Pitt, 1st Earl of Chatham.

6. George Challies, The Law of Expropriation, Montreal: Wilson and LaFleur, Secondedition, 1963, p. 1.

7. Eric Todd, The Law of Expropriation and Compensation in Canada, Toronto:Carswell, 1976, pp. 3-4.

8. Challies, p. 3, citing C. F. Randolph, “The Eminent Domain,” 1887.

9. Lord Halsbury, the Lord Chancellor, in Canadian Pacific Ry. Co. v. Roy (1901), CR[12] AC 374 at 389 (PC).

10. Mr. Justice Riddell, Ontario Court of Appeal, Florence Mining Co. Ltd. v. CobaltLake Mining Co. Ltd. (1908), 18 OLR 275 at 279 (CA).

11. BC Supreme Court Justice McColl, Horton v. British Columbia (Ministry ofTransportation and Highways) (1991), 53 BCLR (2d) 121, 45 LCR 171, (BCSC).Emphasis added.

12. Leiriao v. Val-Bélair (Town), para. 12, citing Challies, p. 12.

13. John W. Morden, “The New Expropriation Legislation: Powers and Procedures,” inLaw Society of Upper Canada, Special Lectures, 1970: Recent Developments in RealEstate Law, Toronto: Richard de Boo Limited, 1970, p. 240.

Mr. Morden was Counsel to the Royal Commission of Inquiry into Civil Rights from1964 to 1971.

14. In fact, in some ways it resembled an even earlier Act – the 1841 Public Works Act.Morden, p. 228.

Notes

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15. Morden, p. 228.

16. R. v. Beech, [1930] Ex. CR 133.

17. Canada v. Toronto (City), [1946] Ex. CR 424, paras. 35, 36.

18. The King v. North York Township et al., [1948] 2 DLR 381, at 386.

19. Calgary Power Ltd. v. Copithorne [1959] SCR 24, at 33-4.

20. James v. Hydro-Electric Power Commission of Ontario [1953] OR 349, [1953] 2DLR 562.

Despite acknowledging the broad scope of the meaning of public purpose, the judgedistinguished between the limited purposes of the power commission and the muchwider public purposes of Ontario. The two, he concluded, could well conflict.

Others have similarly looked far afield for examples of legal reasoning on the issue. Inan often-cited 1970 lecture on expropriation legislation, John Morden referred to a casefrom St. Lucia in his discussion of public purpose. Morden, p. 233.

21. Grayson v. The Queen [1956-1960] Ex. CR 331, para. 9.

22. Ibid., para. 8.

23. Morden, p. 229. And the Honourable James Chalmers McRuer, Royal CommissionInquiry into Civil Rights, Report Number One, Volume 3, 1968, p. 1011.

24. McRuer, pp. 980, 990.

25. Ibid., p. 1001.

26. Canada, Expropriation Act, RSC 1985, c E-21, Section 4. (1), emphasis added.

27. John Coates and Stephen Waque, New Law of Expropriation, Toronto: Carswell,2011 edition, pp. 10-12, 23-17.

28. Morden, pp. 232-3.

29. M.E.P.C. Canadian Properties Ltd. v. The Queen et al. (1974), 7 LCR 31, 64 DLR(3d) 707, para. 25.

30. Canada, Expropriation Act, Section 4.1 (1) - (3).

31. Under Section 73 (b) of the National Energy Board Act, “A company may ... takeand hold of and from any person any land or other property necessary for theconstruction, maintenance and operation of its pipeline.” Because Section 75 stipulates

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that “a company shall ... do as little damage as possible,” companies usually take aneasement rather than full ownership of the land.

32. Law Reform Commission of Canada, Report on Expropriation, 1976, pp. 5, 7.

33. Canada, Expropriation Act, Section 5. (1) (c), (3).

34. Ibid., Section 5. (4).

35. Ibid., Section 10. (1) - (4).

36. Ibid., Section 13.

37. Todd, p. 44.

38. Ibid., p. 429. Mr. Watkins was a consultant to the Law Reform Commission ofCanada on the Expropriation Project.

39. Erika Tucker, “Elderly farmer fights for 215-yr-old land lost to feds,” Global News,November 28, 2013.

During the Third Reading debate on the proposed Expropriation Act, the Minister ofJustice spoke about the intended purpose of the public inquiry: “The purpose of thehearing is to bring to the public attention the objections and the reasons for thoseobjections.” The hearing would thus play a role in holding the Minister of Public Workspolitically accountable for expropriation decisions. Quoted in Society PromotingEnvironmental Conservation v. Canada (Attorney General), 2002 FCT 236, 217 FTR279, para. 56.

40. Attorney-General v. De Keyser’s Royal Hotel, Limited [1920] AC 508.

The royal prerogative to take land for such purposes was supplanted by statutes longago. The court found that statutes had since 1708 regulated the taking of lands, withcompensation, for the purpose of defence during wartime. Although statues governingthe taking of lands for defence during peacetime were more recent, they nonethelessdated back to 1803.

41. Remark by “joecanadain” in the comments on Ernst Kuglin, “QW mayor: Economicbenefits outweigh one farm,” Trentonian / Belleville Intelligencer, January 14, 2014.

For more information on this expropriation, see Elizabeth Brubaker, “Expropriation:Inescapably Necessary, or a Convenient Tool?,” Presentation to Institute for LiberalStudies Seminar, Toronto, Ontario, March 8, 2014: http://environment.probeinternational.org/2014/03/11/expropriation-inescapably-necessary-or-a-convenient-tool/

Another unpopular expropriation for military purposes occurred in 1999, when Canada

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expropriated a portion of BC’s seabed for a military testing and training facility. Thefederal government insisted the facility was necessary for the safety and security ofCanada. It stressed strategic and diplomatic issues, including the importance ofdefence alliances, treaty obligations, and naval training. Regardless, the expropriationwas controversial. More than 3,000 people filed objections to it, and 215 objectorsparticipated in the month-long public hearing into the expropriation. The publicprotested to no avail; the federal government went ahead with its plans.

The Society Promoting Environmental Conservation sought judicial review of theexpropriation. The hearing addressed concerns about the process, especially whetherproper notice of the public hearing had been given, and whether the inquiry officer fullyreported the objections he had heard. Although the judge quashed the expropriationorder, the Federal Court of Appeal reversed his decision. Society PromotingEnvironmental Conservation v. Canada (Attorney General), 2002 FCT 236, 217 FTR279 and Society Promoting Environmental Conservation v Canada (Attorney General),2003 FCA 239, 228 DLR (4th) 693.

42. Morden, p. 248. Cited in Parkins v. R. (1977), 13 LCR 306 (WL Can), (ONCJ).

43. Parkins v. R. (1978), 85 DLR (3d) 581, 19 OR (2d) 473, (CA) .

44. Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 SCR.

45. Ontario, Ontario Energy Board Act, SO 1998, c15, Schedule B, Section 99. (5).

46. Ontario, Ministry of Infrastructure Act, 2011, SO 2011, c 9, Schedule 27, Section10.

Under the St. Lawrence Parks Commission Act, the taking of land by the Commission“shall be deemed to be for the public purposes of Ontario.” RSO 1990, c S24, Section7. (1).

47. Smuck v. St. Thomas (City) [1981] 32 OR (2d) 698, para. 5.

48. Gary Stanuolis, Witness Statement, Joint Board Hearing into Yonge-DundasRedevelopment Project, Exhibit 195, January 30, 1998.

For more information on this expropriation, see Elizabeth Brubaker, “ExpropriationGone Awry: A Case Study,” Presentation to Exploring Rural Land Use Conference,Guelph, Ontario, May 14, 2013:http://environment.probeinternational.org/2013/05/14/expropriation-gone-awry-a-case-study/

49. Joint Board, Yonge Street Regeneration Project: Decision and Reasons forDecision, CH-97-01, June 5, 1998, pp. 16, 28, 33, 43.

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50. Legoyeau Holdings Ltd. v. Windsor (City), 1994 CarswellOnt 4790, para. 5, affirmed52 LCR 241.

51. Ibid., para 4.

52. Blandford Square Developments Ltd. v. Oxford (County) [2006] OJ No. 1168, para.8.

53. Vincorp Financial Ltd. v. The Corporation of the County of Oxford, 2014 ONSC2580, paras. 89, 93.

54. Ontario, Expropriations Act, RSO 1990, c E-26, Section 7. (5), emphasis added.

Under Section 6. (3), the Lieutenant Governor in Council may direct that anexpropriation shall proceed without an inquiry.

55. Morden, p. 252-3, citing Re Hamilton Conservation Authority and Lands in theTownship of West Flamborough.

56. Joint Board, p. 41.

57. Morden, p. 239, citing Henry Riddell’s Railway Parliamentary Practice, 1846.

58. R.B. Robinson, Report on the Expropriations Act, Ontario Ministry of the AttorneyGeneral, 1974, pp. 1, 4, 10.

59. Law Reform Commission of Canada, Report on Expropriation, p. 11.

60. Law Reform Commission of Canada, Working Paper 9: Expropriation, 1975, p. 103.

61. McRuer, p. 1007.

62. In addition to looking at alternatives to proposed expropriations, hearings mayexamine alternative methods of carrying out the expropriating authority’s objectives. Ina 2000 hearing into expropriation for a highway interchange, the inquiry officerconsidered alternative design and construction methods that would reduce the amountof land required to achieve the Ministry of Transportation’s objectives. The Ministryrevised its designs and took less land than originally proposed. Coates and Waque, p.10-38, citing Crozier v. Ontario (Minister of Transportation), an unreported decisionheard December 4, 5 and 7, 2000.

63. Robinson, pp. 3, 5-6.

64. Law Reform Commission of Canada, Report on Expropriation, pp. 11, 12.

65. Karn v. Ontario Hydro (1977), 79 DLR (3d) 256, 16 OR (2d) 737, (ONCA), para. 7.

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66. Morden, p. 248. Cited in Parkins v. R., 1977 CarswellOnt 1245, 13 LCR 306.

67. Walters v. Essex (County) Board of Education (1971), 20 DLR (3d) 386, 3 OR 346,(H Ct J), para. 8.

68. Ball v. Ontario Hydro, 1974 CarswellOnt 375, 6 OR (2d) 631, 53 DLR (3d) 519, 8LCR 217, para. 22.

69. Parkins v. R., 1977 CarswellOnt 1245, 13 LCR 306.

70. Gillian M. Burton, Inquiry Officers Report, January 30, 2013. Appendix C of TorontoStaff Report, Expropriation of 111 and 113 Finch Avenue West for the expansion ofEdithvale Park, March 13, 2013.

71. In 1976, Todd reported that in approximately 5% of the Ontario inquiries, the inquiryofficers had concluded that the proposed expropriations were not fair, sound, orreasonably necessary (p. 46). But such findings were not sufficient to deter theexpropriating authorities. For example, in Walters v. Essex County Board of Education,the school board had approved the expropriation, despite the inquiry officer’sconclusion that “this expropriation is, in my opinion, both indefensible and is not fair orsound and should not be approved.”

72. In contrast, in the second half of the 19th century, British municipalities were giventhe right to expropriate, but it was subject to the authorization of higher levelgovernment departments or boards, and to confirmation by Parliament. This procedure,“cumbrous in the extreme,” may well have curbed municipal expropriations. Morden, p.240.

73. Erika Tucker, “Fact file: Expropriation rights in Canada,” Global News, January 13,2014.

74. Douglas Caldwell and Paula Frederick, “Expropriation: A legal and valuationperspective,” Ontario Expropriation Association Newsletter, Fall 1999. The authorswere referring not just to Ontario’s laws but to the many statutes that permit owners toobject to proposed expropriations.

75. Walters v. Essex (County) Board of Education (1973), [1974] SCR 481, 38 DLR(3d) 693, paras. 10, 13.

The previous year, the Ontario Court of Appeal had made a similar finding in Zaichuk v.Ontario (Water Resources Commission) [1972] 5 LCR 151: An approving authority “isanswerable to the electorate but its action or its decision is not reviewable in thisCourt.”

76. Ball v. Ontario Hydro, 1974 CarswellOnt 375, 6 OR (2d) 631, 53 DLR (3d) 519, 8LCR 217, paras. 4, 5, 31.

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77. Mangin v. Windsor (City),1978 CarswellOnt 506, 8 MPLR 132, paras. 12, 21, 39,emphasis added.

78. Robinson, p. 2. Peter Bowal and Rohan Somers, “Expropriating Land: A BalancingAct,” LawNow Magazine, Centre for Public Legal Education Alberta, July 1, 2013.

Although the exact phrase “fair, sound, and reasonably necessary” appears only inAlberta’s and Ontario’s expropriation legislation, the concept has become something ofa country-wide standard.

79. British Columbia, Expropriation Act, RSBC 1996, c 125, Section 14. (1) and (2).

80. Ibid., Section 10. (1) and (2).

81. Law Reform Commission of British Columbia, Report on Expropriation, Project No.5, 1971, pp. 86, 87.

82. McRuer, p. 1002.

The right to a public hearing for those threatened by railways had been wellestablished in Britain by the early 19th century. “The right of an owner through whoseland a [railway] line would run to be heard by a Committee of the House of Commonswas virtually guaranteed.” Morden, p. 238.

83. McRuer, pp. 1002-4.

The Law Reform Commission of Canada likewise maintained that fairness requires“pre-expropriation public hearings or inquiries where all people objecting or affectedmay be heard.” Law Reform Commission of Canada, Report on Expropriation, p. 3.

84. Law Reform Commission of British Columbia, p. 88.

85. Alberta, Expropriation Act, RSA 2000, c E-13, Section 13. (1) and Section 14.

86. Alberta’s Institute of Law Research and Reform recommended that, “where theexpropriating authority is a municipality, but not otherwise, the owner may question theobjectives of the expropriating authority.” Institute of Law Research and Reform,Expropriation, Report No. 12, March 1973, p. 14.

87. Ibid., Section 6. (1) , Section 15. (8), Section 16 (1).

88. Jordan Thompson, “Project lead hopes council will continue downtown plan,” FortMcMurray Today, March 19, 2013.

89. Saskatchewan Ministry of Justice, “List of Summaries, Consolidations andRegulations: The Expropriation Procedure Act.”

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90. Saskatchewan, The Expropriation Procedure Act, RSS 1978, c E-16, Section 2. (i).

91. “Sask. landowners unhappy with land sale prices,” Western Producer, February 25,2010.

92. Saskatchewan Ministry of Justice, Public and Private Rights Board, Annual Report2012, p. 4.

93. Manitoba, Land Acquisition Act, CCSM, c L-40, Section 4. (1).

94. Manitoba, Public Works Act, CCSM, c P-300, Sections 1 and 3. (1), emphasisadded.

Manitoba’s Highways and Transportation Act likewise leaves much to the discretion ofthe government, providing for the expropriation of any property “that the minister deemsnecessary for departmental roads, airports or docks or for purposes connectedtherewith.” CCSM, c H-40, Section 6. (1).

95. Manitoba, The Expropriation Act, RSM 1987, c E-190, Schedule A, Section 6. (2)and Section 6. (3) (b).

96. Thompson et al. and the Queen in Right of Manitoba (1978), 89 DLR (3d) 217.

97. Favor v. Winnipeg (City) [1988] MJ No. 46.

98. Quebec, Charter of Human Rights and Freedoms, c C-12, Section 6.

99. Civil Code of Lower Canada, Article 407.

100. Leiriao v. Val-Bélair (Town), para. 5.

101. Tribunal Administratif du Quebec, “Expropriation: a specialized procedure,”undated. Also see Tribunal Administratif du Quebec, “Expropriation: You have rights!”

102. Leiriao v. Val-Bélair (Town), paras. 41, 16, 18, 19.

103. Ibid., paras. 64, 65.

104. Quebec, Expropriation Act, RSQ, c E-24, Section 44.

105. An Act in response to the 6 July 2013 railway disaster in Ville de Lac-Mégantic, Bill57 (2013, chapter 21), Section 24.

106. New Brunswick, Expropriation Act, RSNB 1973, c E-14, Sections 4 and 7.

107. Carol Holdings Ltd. v. Fredericton (City), 2011 NBQB 101, 82 MPLR (4th) 61, 4RPR (5th) 247, 961 APR 358, 372 NBR (2nd) 358, 200 ACWS (3d) 1040.

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108. Thomas Developments Ltd. v. Saint John (City) 2006 NBQB 322, 27 MPLR (4th)92.

109. New Brunswick, Expropriation Act, Sections 9 (1), 10 (2), 11 (1), and 17 (2).

110. Hall v. New Brunswick (Attorney General) (1986), 72 NBR (2d) 399 (NB QB), citedin Carol Holdings Ltd. v. Fredericton (City).

111. Tourbière de Lamèque Ltée v. New Brunswick (Executive Council) [1989] NBR(2d) 287 (NBCA), 243 APR 287.

In this case, the Executive Council of New Brunswick decided not to approve aproposed private expropriation. It explained that “(a) New Brunswick is the onlyprovince that has a statutory provision similar to section 7 of the Expropriation Act; (b)The section had been enacted by the former Government; (c) The present Governmentwas not satisfied with section 7 and will be addressing it; (d) The Government wouldnot get involved in a dispute between two private parties.”

112. PEI, Expropriation Act, RSPEI 1988, c E-13, Sections 1 (f) and 3.

113. Minister of Industry and Natural Resources v. MacNeil, [1964] 50 MPR 136 (PEISC), 49 DLR (2d) 190.

114. PEI, Municipalities Act, Chapter M-13, Sections 51 and 30.

115. Nova Scotia, Expropriation Act, RSNS 1989, c 156, Section 10.

116. Irving Oil Co. v. Nova Scotia (Attorney General) [1978] NSJ No. 18, 35 NSR (2d)284, para. 34.

117. Ibid., para. 40.

118. Ibid., paras. 30, 46.

119. Ibid., para. 49.

120. Ibid., para. 67.

121. Higgins v. Nova Scotia (Attorney General), 2013 NSCA 106, 334 NSR (2d) 190.

122. Ibid.

123. Ibid., Section 2 (1).

124. Newfoundland and Labrador, Expropriation Act, RSNL 1990, c E-19, Section 3.

125. Murphy v. St. John’s (City) [2004] NJ No. 395, paras. 13, 16.

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126. Northwest Territories, Expropriation Act, RSNWT 1988, c E-11, Section 3.

127. Ibid., Sections 8, 9, 13, 15.

128. Yukon, Expropriation Act, RSY 2002, c 81, Section 2 (1).

129. Ibid., Sections 12, 13 (5).

130. New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 SCR 190 (SCC),cited in Carol Holdings Ltd. v. Fredericton (City).

131. Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 SCR, atpp. 44-45.

132. Leiriao v. Val-Bélair (Town), paras. 9-10.

133. Ibid., para. 10, citing P.A. Côté, The Interpretation of Legislation in Canada, 2nd

edition, 1991.

134. Costello and Dickhoff v. Calgary, [1983] 1 SCR 14 (SCC), p. 26.

135. Re Ostrom and Township of Sidney (1888), 15 OAR 372, cited in Costello andDickhoff v. Calgary.

136. Costello and Dickhoff v. Calgary, p. 27.

137. Kelo et al. v. City of New London et al., 545 US 469 (2005).

138. The Institute for Justice has extensively documented the reforms in each state. Inits judgment, as of November 2012, 23 states had made substantive reforms, whileanother 21 had increased protections more modestly. For commentary on each state,see the Castle Coalition Legislative Centre web site:www.castlecoalition.org/legislativecenter .

The strongest of the state reforms resulted from citizen-initiated referenda. In contrast,many of the reforms initiated by state legislatures are largely symbolic or havesignificant loopholes, making them less effective. Ilya Somin, “The Limits of Backlash:Assessing the Political Response to Kelo,” Minnesota Law Review, Vol. 93, No. 6, pp.2100-78, June 2009.

139. Alabama Code, Section 11-47-170.

The state makes an exception for blighted properties, but restricts the blightdesignation.

140. Constitution of Michigan of 1963, amended in 2006, Article 10, Section 2.

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141. Constitution of Virginia, amended in 2012, Article I, Section 11.

142. Constitution of North Dakota, amended in 2006, Article I, Section 16. ArizonaRevised Statutes, Section 12-1136. New Hampshire Statutes, Title LI, Chapter 498-A:2.

143. Arizona Constitution, Article II, Section 17.

144. Alabama Code, Section 11-47-170.

As noted above, the state makes an exception for blighted properties, but restricts theblight designation.

145. South Dakota Codified Laws, Title 11, Chapter 7, Section 22.1.

146. Constitution of Florida, amended in 2006, Article X, Section 6.

147. Florida Statutes, Title VI, Chapter 73, Section 13.

148. Mississippi Constitution, amended in 2011, Article 3, Section 17-A.

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